This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jawnie Kaye Hough,
f/k/a Jawnie Kaye Brun, petitioner,
Donald James Brun, Jr.,
Filed September 9, 2003
Beltrami County District Court
File No. F199602
Frank Bibeau, 6530 Highway 2 Northwest, Cass Lake, MN 56633 (for respondent)
Lawrence E. Nichols, Suite A, 1971 Seneca Road, Eagan, MN 55122 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the denial of a motion to vacate a dissolution judgment, Donald Brun contends the district court lacked jurisdiction to dissolve the parties’ marriage and determine custody of the parties’ child. Because the record adequately supports the district court’s finding that Jawnie Hough was a Minnesota resident for purposes of dissolution jurisdiction, and because Hough and Brun’s child was physically present in Minnesota and in the legal and physical custody of Hough at the time of the custody determination, we affirm.
F A C T S
Donald Brun and Jawnie Hough married in 1996 and are the parents of a child born in 1997. Donald Brun and the child are enrolled members of the Red Lake Nation; Jawnie Hough is an enrolled member of the Leech Lake Band. Hough and Brun resided in Bemidji from their child’s birth until December 1998, when they moved to a house on the Red Lake Reservation.
Hough and Brun dispute whether they resided on the reservation during the first quarter of 1999. But it is undisputed that Hough and the child left the reservation and returned to Bemidji at some point during that period and that Hough petitioned for dissolution of marriage in Beltrami County district court on March 31, 1999. Process was served on Brun by mail delivered to his Red Lake post office box, and he signed and returned the acknowledgment of service.
On May 5, 1999, Hough obtained from the district court a domestic-abuse protection order effective for one year. The order granted Hough sole physical and legal custody of the child. Brun failed to appear in the dissolution proceeding, and the district court entered a default judgment. The judgment placed physical custody of the child with Hough.
Over the next three years, the district court’s custody determination was the subject of extensive litigation in the district court and in the Red Lake tribal court. This litigation started when Brun removed the child to the Red Lake Reservation without Hough’s consent, in violation of the district court custody order. Brun then petitioned the tribal court for custody. Following a hearing at which Hough was not present, the tribal court issued an order placing legal custody with Brun and physical custody with Brun’s parents, who also live on the Red Lake Reservation.
Several weeks later, after Hough regained physical custody of the child by taking her from her grandparents during a trip to Bemidji, Brun moved in district court for an ex parte custody-modification order transferring custody of the child to him. The district court ordered modification under principles of comity and directed the county sheriff to return the child to the reservation. After the order to return the child was executed, Hough moved to vacate the modification order. That motion was denied.
Hough then moved to amend the modification order, alleging inadequate notice of both the tribal court custody proceeding and the district court’s modification hearing. Hough also alleged that when Brun obtained the tribal court order he failed to inform the tribal court of the district court’s preexisting dissolution judgment and custody determination. Following a hearing, the district court determined that Brun had provided Hough only “illusory notice” of his motion for custody modification. The court further found that Brun had “perpetrate[d] misconduct” by obtaining the modification of custody using the tribal court order that was issued without disclosing the preexisting district court orders. Acting on those findings, the court granted Hough’s motion to amend, vacated its modification order, reaffirmed the validity of its dissolution judgment and custody order, and ordered the child returned to Hough.
After Brun failed to surrender the child to Hough, the district court issued an order to show cause. Brun responded with a motion to vacate the district court’s dissolution judgment for lack of jurisdiction. The district court denied that motion, and this appeal followed.
D E C I S I O N
“The decision to grant a motion to vacate a default judgment rests within the [district] court’s discretion.” Peterson v. Eishen, 512 N.W.2d 338, 339 (Minn. 1994) (citation omitted). But a motion to vacate a default judgment for lack of jurisdiction asserts that the judgment is void and therefore involves no question of discretion. Hengel v. Hyatt, 312 Minn. 317, 318, 252 N.W.2d 105,106 (1977). Jurisdictional issues are reviewed de novo. Bode v. Minn. Dep’t of Natural Res., 612 N.W.2d 862, 866 (Minn. 2000).
Brun contends that the district court lacked subject-matter jurisdiction for the marital dissolution because he and Hough resided on the Red Lake Reservation and federal law precludes state courts from exercising jurisdiction over civil disputes that arise there. See Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269 (1959) (holding that states lack authority to adjudicate civil actions against Indians that arise in Indian country); 28 U.S.C. § 1360(a) (granting Minnesota jurisdiction over civil causes which “arise in . . . [a]ll Indian Country within the State, except the Red Lake Reservation” (emphasis added)).
In the dissolution judgment the district court specifically found that Hough had been a resident of the State of Minnesota for at least 180 days prior to petitioning for dissolution, and that this residency provided the district court a proper jurisdictional basis for considering the dissolution petition. Minn. Stat. § 518.07 (2002). Thus, our review centers on whether the record supports the jurisdictional finding.
“Residence” for purposes of dissolution jurisdiction means “the place where a party has established a permanent home from which the party has no present intention of moving.” Minn. Stat. § 518.003, subd. 2 (2002). Consequently, physical presence within the state is not solely determinative of residency. Jones v. Jones, 402 N.W.2d 146, 148-49 (Minn. App. 1987) (upholding residency in Minnesota even though person not physically present within state during entire 180-day period preceding dissolution petition). “A finding that the residence requirement has been satisfied will be reversed only if it is palpably contrary to the evidence.” Id. at 148 (quotation omitted). The person alleging error has the burden of demonstrating that the district court finding is erroneous. Naftalin v. John Wood Co., 263 Minn. 135, 148, 116 N.W.2d 91, 100 (1962) (stating that on appeal district court’s findings are presumed to be correct). This court defers to a district court’s assessment of testimonial evidence even if the testimony is provided by affidavit. Minn. R. Civ. P. 52.01; City of Lake Elmo v. City of Oakdale, 468 N.W.2d 575, 578 (Minn. App. 1991).
The district court’s determination on Hough’s Minnesota residency is supported by evidence properly received by the district court. Importantly, the determination is consistent with affidavits submitted by Hough and Brun. In her affidavit, Hough stated that the parties had lived in Bemidji throughout the marriage until sometime in 1999 when she “moved up to Red Lake” for only “a couple of weeks” to stay in a house that Brun “was going to provide instead of cash child support.” She further stated that she never stayed on the reservation for more than two weeks at a time because of Brun’s threatening behavior. Brun’s affidavit states that he and the parties’ child have been domiciled on the reservation since January 1, 1999, but he makes no allegation as to Hough’s domicile, other than to allege that she “resided” on the reservation on the date she petitioned for dissolution.
Because it is undisputed that Hough resided in Bemidji 180 days prior to her filing the petition—that is, in early October 1998—and because Brun presents no evidence that Hough intended to relocate permanently to the Red Lake Reservation, we cannot conclude that the district court’s finding of residence is palpably contrary to the evidence. Consequently, we reject Brun’s assertion that the dissolution action arose on the Red Lake Reservation and may only be litigated in tribal court.
Brun contends that the district court should have declined to exercise jurisdiction over the child-custody determination in favor of the Red Lake tribal court. In support of this argument, Brun relies on In re Custody of K.K.S., 508 N.W.2d 813, 816 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994). In K.K.S. we affirmed a district court’s refusal to exercise custody jurisdiction when a child was taken from the Red Lake Reservation and her Indian mother by her non-Indian father. We concluded that the district court properly declined jurisdiction because declining jurisdiction in K.K.S. discouraged parental kidnapping, eliminated the possibility of conflicting judgments, recognized the cultural identity of the child, promoted tribal integrity, advanced federal policy of promoting tribal autonomy, and satisfied the parens patriae role of both the state and the tribe in protecting the welfare of the child. Id. at 816-17.
Despite certain factual similarities, significant dissimilarities make K.K.S. inapposite to this case. First, the issue in K.K.S. was whether the district court had exclusive custody jurisdiction and not, as in this case, whether the district court had subject-matter jurisdiction at all. Second, unlike the circumstances in K.K.S., the district court was not confronted with a jurisdictional dispute before it issued its custody order. The court’s order noted that Hough stated that she thought Brun might initiate action in the tribal court, but she had not been served with any papers and that she had properly served Brun with a summons and petition in the marital-dissolution proceeding. Third, the principles discussed in K.K.S. would be relevant to the district court’s decision to vacate its order deferring to the subsequent custody order, but Brun did not seek relief from that decision. Instead, Brun challenged the district court’s initial exercise of jurisdiction in the marital-dissolution proceeding. The holding of K.K.S. essentially confirms that state and tribal courts have concurrent jurisdiction over custody determinations involving an Indian child who is outside the boundaries of an Indian reservation. Id. at 816. Brun, in his submission to the district court on Hough’s motion to vacate, conceded that the tribal court had concurrent custody jurisdiction.
In addressing Brun’s jurisdictional challenge, the district court relied on provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), Minn. Stat. § 518A.01-518A.25 (1998) (repealed 1999). That act, which governed child-custody determinations in Minnesota at the time the district court placed custody with Hough, applies to jurisdictional disputes between states, but tribal courts were not incorporated in this framework. Desjarlait v. Desjarlait, 379 N.W.2d 139, 143 (Minn. App. 1985) (observing that “[t]he express purpose of the UCCJA is to avoid jurisdictional disputes between states in child custody matters”), review denied (Minn. Jan. 31, 1986).
The inclusion of “tribal” courts became effective in the subsequent Uniform Child Custody and Enforcement Act, Minn. Stat. § 518D.104(b) (2002) (stating that “[a] court of this state shall treat a tribe as if it were a state of the United States” for jurisdictional purposes). But at the time of the Hough-Brun custody determination, custody jurisdiction turned on application of common law principles under which child-custody jurisdiction is determined by the child’s domicile. See Tureson v. Tureson, 281 Minn. 107, 111, 160 N.W.2d 552, 555 (1968) (stating rule). A child’s “domicile” is the place of child’s settled connection for legal purposes, either because it is the child’s home or assigned to the child by law. Id.
When the district court determined custody in the marital-dissolution judgment, the child was in Hough’s legal and physical custody under a valid domestic-abuse restraining order, and Hough was a resident of Minnesota for jurisdictional purposes. Although the court incorrectly applied UCCJA principles to determine jurisdiction, the court’s findings result in the same determination under the common law. Brun makes no claim that the child was domiciled outside Minnesota when the court determined custody. The child had a settled connection with the state of Minnesota at that time, and that connection gave the district court jurisdiction to make the custody determination.
Brun contends that the district court lacked personal jurisdiction over him because service of process was by mail rather than personal, as required by statute. See Minn. Stat. § 518.11 (2002) (dissolution petition shall be served on respondent personally). According to Brun, service was also defective because he received the summons and petition on the Red Lake Reservation, and Red Lake band members are immune from state court service of process. See Comm’r of Taxation v. Brun, 286 Minn. 43, 53, 174 N.W.2d 120, 126 (Minn. 1970). We review a district court’s determination of personal jurisdiction de novo. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn. 2000).
Personal jurisdiction may be established by waiver. Mississippi Valley Devel. Corp. v. Colonial Enters., Inc., 300 Minn. 66, 72, 217 N.W.2d 760, 764 (1974). “A party who takes or consents to any step in a proceeding which assumes that jurisdiction exists or continues has made a general appearance which subjects him to the jurisdiction of the court.” Id. (quotation omitted). When Brun moved in district court for recognition of the tribal court order he did not contest the validity of the initial district court custody determination. Both his motion and his submission assumed the district court’s jurisdiction in at least four ways.
First, Brun’s motion states that the tribal court order “modified” the district court’s custody order. Second, Brun urged that the requested relief be granted because the requirements for modification of custody had been satisfied. Third, Brun alleged a “material change [in] circumstances” in support of his motion. This is the standard governing modification requests. Fourth, and most significantly, Brun did not contend that the motion to recognize the tribal court order should be granted because the district court had lacked personal jurisdiction when it made the initial Hough-Brun custody determination. By effectively asking the district court to modify its custody order, Brun accepted the validity of that order and thereby waived any defect in service of process.
Brun seeks to challenge the sufficiency of the findings underlying the district court’s determination of custody in the marital-dissolution judgment. Brun failed to directly appeal the judgment and may not now challenge the sufficiency of the district court’s findings in a subsequent motion after the time for appeal has expired. A marital-dissolution judgment may be reopened only on grounds enumerated in Minn. Stat. § 518.145, and insufficiency of factual findings is not included among those grounds. Minn. Stat. § 518.145, subd. 2 (2002).
Hough asks this court to order attorneys’ fees on appeal. Appellate rule 139.06 requires that a request for attorneys’ fees be made by motion. Minn. R. Civ. App. P. 139.06. Hough has not made the required motion nor indicated a reason to vary from the usual procedures, which require a motion and documentation, and we therefore decline to order fees.